Property

New Dictionary of the History of Ideas
COPYRIGHT 2005 The Gale Group, Inc.

PROPERTY.

"There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe" (p. 2). So wrote Sir William Blackstone (1723–1780), the great English jurist, in his Commentaries on the Laws of England. Blackstone exaggerated: romantic love, sexual desire, and spiritual purity engage human creative attention as much as ownership of things. Yet Blackstone does not overstate the importance of property among human institutions. Property joins the family, the state, and the church as the most basic and universal structures of human society; and among these four, it is likely the most indispensable. A society might persist without kinship, kings, or priests, but it will not survive without distributing to its members stable control over its resources.

The significance of property can be appreciated by considering whether there is anything around you that is not owned by someone. This book, certainly (although the owner of the paper and ink—or the computer screen—will not be the same person as the copyright holder). The chair in which you are sitting and all of the objects around you, the walls of the room, the surrounding building and the land on which it rests. Even the mineral deposits deep below and the airspace high above are owned by someone. Human beings themselves might be exceptions to this universal rule of ownership—although many think that there is a sense in which each person owns himself. And perhaps no one now owns the heavens. Yet if it is true that no one owns the planets and the stars, one feels that this is merely because humans have not reached them yet.

The Nature of Property

What is property? One will search in vain for its essence. Modern ideas of property are the product of millennia of change, their boundaries being stretched and cut to fit a long series of ideologies and social forms. One is left not with one definition of the term but rather with a variety of usages, some overlapping and some aloof. The sadistic boss uses the language of property when he says to the employee, "I own you," as does the plaintive lover who cries, "You belong to me."

The variety of meanings of the term may be demonstrated by considering cases in which it is not certain whether something is property or not. Is one's passport one's property? What of one's vote, one's entitlement to social security payments, or one's lungs? Do people own their appearance, or their reputation? People will disagree on these cases; most will say that there is a "sense in which" each is property. This is the point that is being emphasized here. There are many "senses" of property, each of them attracting us with its own gravitational pull.

The American legal theorist Thomas Grey has alleged that the dispersal of meanings has gone so far that it should be said that the concept of property has disintegrated completely. Not only are there a range of concepts in ordinary speech, but specialists such as lawyers and economists have defined their own discontinuous usages. Grey's thesis goes too far. There is a core of meaning to the idea of property, and at this core is found a prototype against which all other instances are measured.

The vital first insight into the nature of property distinguishes property from mere physical possession. Being in contact with an object is neither necessary nor sufficient for ownership. As the English jurist Jeremy Bentham (1748–1832) observed: "A piece of stuff which is actually in the Indies may belong to me while the dress I wear may not" (p. 133). The ownership relation is not a physical relation between a person and the property, but a moral or legal relation among persons
with respect to the property. Property is to possession as marriage is to mating.

As Bentham asserted, the relation of ownership is not material but metaphysical. What then is that relation? In all instances of ownership there are three variables: some owner has certain rights over the property that is owned.

Any number of entities can fill in the third, property, variable. Houses, steel factories, palaces, oil deposits, and interplanetary-exploration vehicles can all be property, as can taxi medallions, dividends, parts of the broadcast spectrum, works of fiction, and even forms of life themselves. The things that are property have almost infinite variety.

The types of owners of property sort themselves into familiar categories. The public owns public property, the government owns government property, and private persons—either individuals or "artificial" persons such as corporations—own private property. There are also sometimes special rules for certain kinds of owners: for example, couples share rights over joint property, and in some countries church property is exempt from tax. Since the past five hundred years have seen the torturous rise of private property to predominance, private property will be the particular focus here.

It is the rights that define the relation between owner and owned that distinguish the different senses of "property" from each other. The most basic rights that define most kinds of ownership are the rights of exclusive use. An owner has the right to use the property, and others may not use that property without the owner's permission. Beyond these rights of exclusive use, there are other rights that define various senses of "property" related either to the owner's control or to the property's value. An owner may have the right to transfer the property (if so, the property is alienable). An owner may have the right to sell the property (if so, the property is a commodity). An owner may have the right to receive a stream of income from the property (if so, the property is an asset).

These categories nest or overlap. Not everything that an owner may exclusively use may be transferred: one may not legally transfer one's prescription drugs to anyone else. Not everything that can be transferred may be sold: for example, United States law allows the transfer, but not the sale, of eagle feathers. Nor is everything with economic value something that the owner has the right to sell. Trust funds and tenured professorships are assets, but they are assets that cannot be sold.

The core meaning of property is that of a commodity: that is, of an object of salable rights of exclusive use. The commodity is the prototype of property, and sets the paradigm against which we measure less central senses of ownership. There is a "sense in which" one's lungs are one's property, since one has exclusive rights to use them. Yet there is also a sense in which they are not, since one cannot legally sell them to others. Similarly with one's reputation. One's reputation can be a financial asset, but there is little sense in saying that one has rights to exclusive use of it. Reputation can be considered a type of property, but its distance from the prototype makes it property of a particularly attenuated sort. The commodity is at the core of current ideas about property, and, as will be seen, debates over what should be put into this crucial category have been some of the most heated.

There are also secondary rights and liabilities that accompany ownership in most of its senses. An owner has a right to compensation should another damage his property, and an owner is liable should her property cause harm to someone else. These secondary aspects of ownership tend to be taken for granted, yet they can be of the first importance for innovative approaches to property-related problems such as environmental protection.

Global Variation and Convergence

When people discuss global variations in property, they are usually speaking either about differences in how property is distributed, or about differences in how property rules are formulated.

Inequality.

The question of the distribution of property is the question of inequality. There is no one factor that explains why some countries have more equal property distributions than others, as can be seen by taking income as the representative measure for all property. Some of the most egalitarian countries in the world (such as Hungary and Slovakia) have a tradition of equality that has persisted throughout large transformations in their political and economic systems. Other countries, for example those in Scandinavia, achieved greater equality through determined political reform. The most remarkable decline in inequality in the twentieth century was accomplished in socialist Cuba, which under Fidel Castro, who came to power in 1959, leveled its property holdings to a degree unparalleled in the Americas.

Among the major economic powers, Japan has the most equal distribution of income and the United States the most unequal. Inequality increased in the United States during the period of conservative ascendancy that began in the 1970s, and this growth of inequality appears to be related to a general strengthening of property laws. Latin America, dominated by entrenched landowning elites, is the most consistently unequal region of the world. Many African countries, struggling with failed governments, are also highly unequal in their distributions of property—as is South Africa, which in the early twenty-first century was only slowly recovering from decades of apartheid. Several nations in Southeast Asia are marked by inequality that runs along ethnic lines, with the greater riches of minority ethnic Chinese communities being a perennial source of social friction.

Finally, the world itself is a very unequal place. The level of inequality across the globe is greater even than the inequality within the most unequal large country (Brazil). According to the economist Branko Milanovic the richest 10 percent of individuals in the world control fifty times more of global income than do the poorest 10 percent of individuals, and the richest 1 percent of humankind receives more income in a year than does the poorest 50 percent. There are lively debates over whether this global inequality is increasing or decreasing, and over the impact of globalization on inequality. The only safe
conclusion to be drawn from these debates is that different conclusions about trends and impacts will be reached depending on the data that are used and the income brackets that are compared.

The distribution of property has a profound influence on almost all aspects of human life. One window into this conclusion is the robust causal connection between levels of inequality and human health. There are reliable data from within the wealthiest countries showing the influence of inequality on health outcomes. In all rich countries, the rich are much healthier than the poor. Moreover, the more unequal a country is in its property distribution, the more unequal it will be in the distribution of health. Interestingly, "middle" groups in rich countries with high inequality are less healthy than middle groups in rich countries with low inequality. Moreover, creating a more equal distribution of property makes the poor healthier without making the rich less healthy. When considering the global correlation between inequality and health, it is evident that the citizens of rich countries are on average much healthier than the citizens of poor countries. Further, as the medical anthropologist Paul Farmer has shown, poor individuals are much less healthy than rich individuals wherever they live. Regardless of where in the world they live, the poor tend to die younger from infectious diseases and violence, while the rich tend to die older from chronic conditions.

Property rules: capitalism.

Beyond the question of the distribution of property is the question of global variations in how property rules are formulated. Looking at the world as a whole, by far the most important change in political economy since World War II is the transition to the near-universal acceptance of the legitimacy of private property in the means of production. This is a tremendous intellectual shift. The contrast between communist and capitalist countries, which defined half a century of world history, has vanished in most places and is vanishing in the rest. Even the Chinese constitution in the early 2000s requires that the right of private property be secured. The fates of the many millions of people who have made (and are making) the transition from a communist to a capitalist economy have been varied. On the one hand, the rapid privatization of state property in the former Soviet Union has been accompanied by a plunge in living standards to levels that are shocking within Europe. On the other hand, the gradual introduction of private property norms into the Chinese economy since the late 1970s has resulted in what is probably the greatest aggregate increase in well-being in human history.

The explanations for this remarkable global convergence on the legitimacy of private property in the means of production cluster around two poles: the political and the economic. Private property is associated with certain kinds of individual political freedom. One type of explanation for the transition to capitalism, emphasized by the historian Richard Pipes, is that the central control characteristic of communist states became intolerable to those wishing more individual control over the politics and less political intrusion into private life. The other cluster of explanations is economic. Communism is simply less efficient than is capitalism at generating the goods and services that people want. The leading theorist of the inefficiency of communist economies was the Austrian economist F. A. Hayek (1899–1992). Hayek's central insight was that the information about how and what an economy should produce is dispersed among millions of individuals, and that it is much less efficient to attempt to move this information to a central source of economic control (as state ownership systems do) than it is to disperse economic control to the individuals who have the information (as private property systems do).

Property rules: inheritance.

Even though private property in the means of production has emerged as the global norm, there are still major variations among countries regarding more specific property rules. One of the most revealing dimensions of variation runs through the laws of inheritance. Inheritance laws are the site of several conflicting values. Parents tend to want to pass their property along to their children, either because this property is special to the family's history or because the parents wish to increase their children's economic security. Yet inheritance laws also permit or even require various forms of inequality to persist across generations, the most significant of these being inequalities between families and between genders. The way that a society frames its laws of inheritance reveals much about its social priorities.

The Islamic law of inheritance derives from the pronouncements of the Prophet in the Koran, which have spurred highly elaborated interpretations. All of the schools of interpretation agree that Islamic law requires a daughter to be given part of an inheritance (a very progressive rule in the Prophet's day), but restricts her share to one-half of what a son receives (which does not satisfy liberals in the early twenty-first century). Also notable in Islamic law are the strict limitation of inheritance to blood relations, and the prohibition on Muslims either bequeathing to or inheriting from those outside the faith. In countries where Islamic law is the basis of national law, one interpretation or another of the Koranic injunctions is codified. In India, on the other hand, the Islamic law of inheritance applies within Muslim communities but not elsewhere. The inability of India to generate a uniform civil code that would bind both the Muslim minority and the Hindu majority (as well as Buddhists, Jains, and Sikhs) is a symptom of the deep social differences that continue to divide this vast and sometimes volatile nation.

Among the Tswana tribes of Botswana, the rules of inheritance perpetuate the prevailing economic, familial, and gender relations. Most of the tribes are patrilineal, meaning descent is traced through the males. In these tribes the wealth of the family (mostly cattle) is kept within the family by passing most of it to the eldest son. Interestingly, in some of these tribes the rule is that ownership of the family home passes to the youngest son, thereby ensuring that a widowed mother will be supported even if the eldest son moves away, and so that the traditional family homestead will be preserved. Other Tswana tribes are matrilineal. In these tribes it is still a male who inherits the cattle, but it is the oldest son of the oldest sister, not the son, who receives the main inheritance. Here again is seen the property rules sustaining, and even defining, the most basic social relationships over time.

Primogeniture (which vests ownership of land in the oldest son) is especially rewarding as a subject for investigation, because its presence correlates to important features in a society's economy. A Marxist thesis states that changes in political and economic rules will tend to follow developments in methods of production: as Karl Marx (1818–1883) himself said, the hand mill gives you society with a feudal lord, the steam mill, society with the industrial capitalist. The history of primogeniture tends to bear out this hypothesis. In the English feudal period arable land was the most productive asset, yet land was limited and required large estates to be worked effectively (to divide it was to ruin it, as the Scottish economist Adam Smith [1723–1790] remarked). Primogeniture ensured that an estate would remain intact, instead of dissipating the land into inefficient smaller parcels by dividing it among sons. These same economic facts also obtained in Japan during the period of domination by the samurai class, and again in Japan primogeniture defined the rules of inheritance. By contrast, primogeniture was never widely adopted in eighteenth-and nineteenth-century American law. This can be explained by the much greater availability of arable land in America (reducing the need to require a specific form of inheritance) and the increased importance there of industrial and financial capital (the ownership of which can be divided without similarly reducing productive efficiency).

The form of inheritance laws in a society are not only responsive to epochal trends in methods of production, they are also of first importance for explaining the specific character of that society at any time. For example, at the turn of the twenty-first century blacks in the United States faced far greater risks of poverty, unemployment, and imprisonment than did whites. The sociologist Thomas Shapiro argues in a 2004 book that the main explanation for this is that these blacks inherited much less wealth than did their white counterparts. Because blacks inherited less, their opportunities were fewer and they were less likely to be able to withstand the economic shocks that are a part of life in a modern economy. Moreover, this racial disparity in wealth can be expected to increase over time, as whites build up greater capital between generations at a much faster rate. Different rules of inheritance would produce different patterns of social inequalities between the races.

The Values of Property

As has been seen, the nature of property is complex. The values that bear on property are similarly complex. Indeed as the political theorist Alan Ryan has emphasized, the long history of the debate over the legitimacy of private property can be viewed as a succession of major theorists stressing the benefits or the burdens of this institution. The goods and the bads that these theorists have emphasized can be arranged along three dimensions: the values pertaining to individuals' relation to private property, the values arising from an owner's relation to other persons, and the values generated in a society where private property predominates.

Personal values.

An owner has many advantages because of his relation to what he owns. As Bentham never tired of pointing out, owning property gives one a secure access to resources that may be essential to carrying out one's plans over time. Ownership also allows one to enjoy and preserve items of personal value, such as a mother's wedding ring. A Hegelian point elaborated by the legal theorist Jeremy Waldron is that ownership also improves the owner. As an owner works on his property (for example, paints a picture) his self-awareness increases as he sees his personality reflected in the world, and he comes to develop prudence as he realizes that the changes he makes in his property on one day will determine what he starts work with on the next day.

The critics of private ownership have stressed the corresponding disadvantages. Marxist critics have worried that owners will fetishize what they own and come to believe that ownership of consumer goods can substitute for satisfying personal relationships or deserved self-regard. Nor do Marxists celebrate individuals' externalizing their personalities into the property on which they work, since in a capitalist system these individuals will have to sell the objects to others in order to make a living. Finally, nearly all critics of private property have made the mirror-image point to Bentham's concerning the owner's security. Those who do not own property, they note, can expect to be excluded from what they want and need, which makes their prospects predictably wretched.

Interpersonal values.

The interpersonal benefits of private ownership are many. Property secures for an owner a protected sphere in which he is free to do as he likes. He may protect his privacy by keeping others out, and he may increase intimacy by allowing selected others to enter his private zone. Moreover, as Hegel saw, ownership brings with it social recognition: everyone must acknowledge that the owner's will is decisive over the disposition of the object of ownership. Aristotle also noticed that private ownership increases opportunities for generosity—it would be much harder to give gifts if no one owned anything that could be given.

Yet these benefits also have flip sides. The same rights that bring freedom and privacy can also foster disconnection, loneliness, lack of fellow-feeling, and antisociality. Further, as Jean-Jacques Rousseau (1712–1778) bemoaned, private property makes each person dependent on others for not only their material wants but for their very self-conception. In a capitalist system one depends for the satisfaction of one's needs on others who may have no concern for one's welfare, and one comes to evaluate one's self-worth mostly by reference to the property one has accumulated.

Societal values.

Finally, the bitterest battles have been over the societal values attaching to a private property system. On the one hand, private ownership is often superior to common ownership for effective stewardship of resources. ("If everyone owns everything, then no one will take care of anything.") Private property economies encourage each person to work hard to satisfy the wants and needs of others, and so are likely to be more innovative and prosperous. Widespread property ownership is conducive to social stability, since those "with a stake in the society" are less likely to favor revolution or war. And private ownership, as the American economist Milton Friedman (b. 1912) argued, is the best bulwark against the overweening state power that the twentieth century gave so much cause to fear. On the other hand, the pathologies of
private ownership systems have been thoroughly documented. Private property economies foster competitive and exploitative relations, in which each sees the other as only a rival or a master, a servant or a dupe. Private property turns intimate relations into commercial relations (as one sees at weddings and Christmas). Markets multiply false needs and a blank consumerism, wasting resources and leading to uncontrolled environmental damage. Furthermore, a private property economy results in inequalities in almost every important aspect of human life, from political power to opportunities for meaningful work and leisure to life expectancy itself.

The complexity of the values surrounding private property has led all modern societies to frame commensurately complex property laws in an effort to capture the benefits of property while avoiding its burdens. For example, the law may allow the owner of a shopping mall to profit from renting space to popular stores but also forbid him to exclude protesters peacefully handing out political pamphlets. The law may allow a homeowner complete freedom of interior decoration but restrict her freedom to paint the exterior in garish colors so as to protect her neighbors' property values. Private property law in every legal system has become an intricate web of regulations, as each society has struggled to balance all of the countervailing values at stake.

Contemporary Debates

Within the framework presented here, private property rights are instrumental to achieving a variety of diverse values. This is by far the predominant framework among those who devise national and international property rules. Within the academy, however, the period since the early 1970s has seen two alternative paradigms emerge. Both of these paradigms tend toward libertarianism, which models politics as the interactions among private property owners and argues that property rights should be robustly resistant to state interference. Although these two paradigms converge on a libertarian political program, they reach it by quite different routes.

Academic debates: Nozick and law and economics.

Robert Nozick's extraordinary Anarchy, State, and Utopia (1974) declared that property rights are not instrumental, but are rather morally fundamental. Respect for persons requires, Nozick claims, not only that one respect their rights to life and free movement, but that one respects their rights to their legitimately acquired property as well. A just social order will no more recognize an overall principle for distributing wealth than it will recognize an overall principle for distributing marriage partners. To tax someone's earnings and give these earnings to someone else is on a par with enslaving that person for someone else's benefit—it is a fundamental violation of the taxpayer's rights. The only justifiable state is a minimal one that protects people's property rights against encroachment; beyond this, individuals must remain free to use and sell their property (including themselves) as they choose.

Nozik here develops and radicalizes the theory of the English philosopher John Locke (1632–1704), who argued that private property rights are conceptually and historically prior to political institutions, and that political power cannot legitimately be used to deprive individuals of the rights they have independently of the existence of the state.

The brilliance of Nozick's arguments stimulated an entire generation of philosophers to respond to the idea that property rights might be fundamental. Within the legal academy a second movement was also reaching consistently libertarian conclusions, albeit from a different set of assumptions. This movement, known as law and economics, holds that property rights are indeed instrumental, but that they are instrumental in achieving a single value: wealth. There are actually two separate law and economics theses: one is that the laws as they exist do generally work to maximize wealth, and the other is that the laws should work to maximize wealth. The maverick leader of the law and economics movement, Richard Posner, has advanced both theses.

The law is and should be framed, Posner argues, so as to maintain an efficient allocation of resources—meaning an allocation wherein those who are the most willing and able to pay for the various resources have control over those resources. For most resources, the law can achieve an efficient allocation by assigning strong property rights to owners. If someone besides an owner values a resource more than does the owner, they can then simply buy it from that owner. The main role of the state is again simply to enforce these strong property rights. However, there are some cases in which it is more efficient for the law to assign somewhat weaker property rights. For example, if a public use of a resource would bring more wealth than does a private use (building a highway through private ranches, for example), then the state may simply take the resource without entering into expensive negotiations with each private owner.

This wealth-maximizing paradigm has proved a powerful framework for explaining why the law is as it is within capitalist economies. Yet, clearly, even in capitalist economies not all laws work to maximize wealth, and legal economists have advocated a gamut of reforms that they believe would make these economies more efficient. They have generally argued that efficiency would be increased with stronger property rights, a less redistributive state, and, most notoriously, with a wider application of property rules. For example, legal economists have claimed that treating body parts, votes, and even babies as salable property would increase total social wealth. This last argument is one that leads this discussion out of the academy and into the more general public debate over commodification.

Commodification and progressive property-based arguments.

The question of commodification is: What should be for sale? Disputes have focused on objects and activities that are particularly sensitive for human identity and contemporary morality: blood, organs, psychoactive drugs, sexual services (prostitution) and gestational labor (surrogate-motherhood contracts). The debates over whether these things should be commodities have had a certain structure. On the procommodification side, it is often said that commodification allows those who want something (sex or a baby) to get what they otherwise could not. Moreover, commodification tends to increase the supply of scarce goods (there would be few waiting
lists for organ transplants if there were a market for organs). Many pro-commodification arguments simply assert that restrictions on sales (of, for example, drugs) are insultingly paternalistic restrictions on harmless personal freedom. Some also argue that commodification allows the renegotiation of outdated cultural norms: for example, that legalizing surrogacy would show that women are in control of their own reproductive lives. Moreover, it is hard to limit anti-commodification arguments to their intended targets: Why is it wrong to sell one's services as a prostitute, but not as a nurse, a cellist, or a priest?

Anti-commodification arguments have revolved around harms to well-being, status, and community cohesiveness. It is said that allowing markets in, for example, organs would inevitably lead to exploitation of the poor and the desperate, and so exacerbate existing social inequalities. Moreover, legalized prostitution and surrogacy only reinforce the stereotypes of women as properly sexually subordinate or as baby factories. More subtly, it is argued that commodifying people's bodies, or their sexual or reproductive lives, would instill in them a degraded self-image as they came to view themselves as repositories of economic value instead of beings of dignity. Finally, as English social theorist Richard Titmuss found with blood donation, a society that gives gifts instead of making sales fosters the kind of altruism that is crucial for holding a community together.

Anti-commodification arguments have been one standard of the political Left during a period in which the political Right has eliminated everything from state ownership of industry to rent control. The collapse of Marxist ideology, and a new popular presumption against traditional taxation and redistribution schemes, has disrupted leftist politics. Only slowly is the Left learning to deploy property arguments toward progressive causes. One example is in environmental regulation, where it is argued that "dirty" industries should be held liable for the harms (pollution) that their property causes. The Peruvian economist Hernando de Soto, has launched a different kind of progressive-based argument from the Right by claiming that strengthening the property laws in developing countries would allow the many poor who work in the "shadow" economy to take advantage of the resources (houses, land) that they now control but cannot use as legal assets.

Intellectual Property

Intellectual property brings together many of the themes from the discussions above: conceptual complexity, global variation and convergence, and lively debates over values. Intellectual property rights are rights to control the use or transmission of intellectual creations. There are three basic categories. Copyright covers "expressive" works (such as books, musical compositions, films, paintings, computer programs) as well as performances, sound recordings, and broadcasts. Patents protect inventions. Trademarks and marks of geographical origin (for example, "Champagne") make distinctions among the goods and services that are brought to market. The wide historical variation in intellectual property law across the globe narrowed in the 1990s when intellectual property standards (such as that a copyright endures for fifty years after the death of the author, and patent protection lasts for twenty years) were built into the treaties establishing the World Trade Organization.

The origins of copyright law lie in the desire of the English crown in the seventeenth and eighteenth centuries to censor publications by granting printing monopolies to selected publishers; patent monopolies over inventions emerged in Renaissance Italy. In the modern era the main justifications for intellectual property rights have been three. By far the dominant justification (enshrined, for example, in the U.S. Constitution) is that the prospect of exclusive control gives creators incentives to create works that will be pleasing and useful to others. A secondary justification, usually associated with continental Europe, is that intellectual property rights protect the personality interests of artists in the integrity of their expressions. A third justification, relating mostly to trademarks and geographical marks, is that these rights assure consumers by associating a product with known producers.

Global intellectual property law has become extraordinarily elaborate as its framers have tried to balance all of the values at stake. Many disputes remain. For example, many have argued for weakening the patent protection of pharmaceuticals so that sick people in poor countries can get the medicines they need. The pharmaceutical industry has countered that such weakening would lessen the incentives they have to create new life-saving drugs in the future. Another dispute has been over emerging technologies such as the Internet, whose potential, as legal theorist Lawrence Lessig maintains, is shackled by national regulations designed to favor powerful industries.

Given that the fates of millions of lives, the rate of global economic progress, and huge profits drive controversies such as these, it is not surprising that they have moved from the legal into the political arenas. On these issues, as with so many other issues concerning property, the most basic interests and values are at stake.

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Property

Dictionary of American History
COPYRIGHT 2003 The Gale Group Inc.

PROPERTY

PROPERTY. Property lies at the center of Americans' minds and hearts. When they look around they see land, all of which is owned by someone. Ralph Waldo Emerson captured that reality when he wrote in 1841, "I cannot occupy the bleakest crag of the White Mountains or the Allegheny, but some man or corporation steps up to tell me it is his." While Emerson and other reformers questioned the system of property, the vast majority of Americans have embraced it. The American legal system is central to protecting individuals' rights to property, including the right to exclude trespassers; the right to have property free from excessive government regulation (which is also the right to use property in the manner the owner wishes); and the right to sell (alienate) property.

Restrictions on Property Rights

Property exists in conjunction (and often in conflict) with community rights. The federal and state governments, for example, have the right of eminent domain, which is the power to purchase property from owners for public use, even if they do not want to sell. The Fifth and Fourteenth Amendments to the United States Constitution require that the government pay "just compensation." The eminent domain power is used frequently to acquire property for highways, railroads, public parks, and urban renewal. Some of the most contentious property disputes in the late twentieth century have been over the appropriateness of eminent domain for urban renewal projects, such as the wholesale purchase of Poletown, a Polish community in Detroit, which was subsequently sold to General Motors in the early 1980s. Many questioned whether the property was being taken for public use. That case placed individual homeowners and their close-knit community against the larger community and General Motors. Other urban renewal projects have also been controversial because of their dislocation of communities. Yet the U.S. Supreme Court remains reluctant to intervene in a legislature's judgments about what constitutes public use.

Eminent domain is one example of the way that private property is subject to community rights. Zoning is another illustration. During the Progressive Era, local governments frequently imposed restrictions on the use that could be made of land, such as prohibiting the location of houses in industrial areas, limiting the size and height of buildings, and requiring minimum lot sizes for houses. Those restrictions on the use of property often had the effect of dramatically decreasing property value. The Supreme Court upheld zoning in 1926 in Village of Euclid v. Ambler Realty Company. The decision, issued by Justice George Sutherland—one of the most consistently conservative jurists of the twentieth century—rested on the principle of the police power, which is the state's power to regulate for the health, safety, and morality of the community. Since that case, courts have consistently given wide latitude to government decisions about zoning.

Euclid drew upon a long history of limitations on use of property for noxious purposes under the police power. It referred to a 1915, Hadacheck v. Sebastian, case that allowed Los Angeles to regulate a brick-making plant that was located near residences. As early as the colonial era, governments heavily regulated the use of property, such as by ordering the draining of swamps and by limiting the use of property for taverns, tanneries, and the storage of gunpowder. In the nineteenth century, many judges allowed significant regulation of property, as by imposing restrictions on building in a manner that might be dangerous, on using property for immoral purposes, and on locating businesses in residential areas. In some cases, the government ordered the destruction of property that was posing an immediate threat, such as blighted trees. Frequently, homes and businesses were burned during fires to create a firebreak and thereby stop the fire from spreading. In those cases, the government paid no compensation. Courts also restricted the rights of cemetery owners to exclude visitors. Despite sweeping statements, such as William Blackstone's that property consists of "that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe," property was frequently subject to regulation in the years leading up to the Civil War.

Compensation and Regulatory Takings

Some of the most important regulations of property related to property in human beings, known as slaves. Slaves who committed crimes were often punished without compensation to owners. Masters were also restricted in some of the "uses" they could make of slaves; they could not, for example, teach slaves to read, and harsh punishments were usually prohibited. In the aftermath of Nat Turner's 1831 rebellion in Virginia, the legislature discussed the abolition of slavery. One person likened slaves to dangerous property and urged that they be freed, without paying any compensation to their owners, on the theory that dangerous property could be destroyed without compensation. Later on, in environmental cases, federal and state statutes greatly restricted dumping hazardous waste on property and imposed even retroactive liability on the owners of contaminated property. When the Thirteenth Amendment confirmed the end of slavery, it also marked the wholesale termination of property rights.

On occasion, when there is significant limitation on the use of property, courts require the government to pay compensation. Those cases are called "regulatory takings," because the government's regulation has, in effect, taken the property owner's rights. Determining when a regulation becomes a taking is difficult and generated substantial debate in the twentieth century. The modern era of regulatory takings jurisprudence began with the Pennsylvania Coal v. Mahon decision of Justice Oliver Wendell Holmes in 1922. Justice Holmes struck down a state statute prohibiting coal companies from mining under houses in a way that caused the surface of the land to cave in. Holmes thought the regulation went "too far"; it deprived the coal mine owners of their right to property, he stated, for they had already purchased the surface rights. Justice Louis Brandeis's vigorous dissent argued that the state has the right to prohibit dangerous uses of property, such as prohibiting the sale of alcohol and margarine (which was then considered unhealthy).

Since the mid-1980s, the Supreme Court has revisited regulatory takings claims numerous times, in two contexts. First, landowners were asked to give up interests in their property in exchange for permission to build on it. The Supreme Court concluded that in those cases, known as exactions, the government must show a reasonable nexus between the burden imposed and the use being permitted and that the burden imposed by the state is reasonable in light of the proposed development. Thus, it is permissible to condition expansion of a parking lot, which will increase water run-off, on the grant of the right to expand a nearby floodplain onto property held by the owner of the parking lot. In a second series of cases, landowners argued that their property was taken when restrictions on building essentially prohibited all development of the land. The Supreme Court looks to a variety of factors to determine whether a regulation restricting development is permissible, including the economic effect of the regulation and whether it unreasonably interferes with owners' expected profits from their investments.

Balancing Interests

Property law balances competing interests between neighboring owners as well as between property owners and the community. The doctrine of "nuisance," for instance, limits owners from using their property in a way that unreasonably interferes with neighbors. So, a person living in a city may be prohibited from operating a feed lot on her property. At other times, when a use of property is particularly important, but it significantly harms a neighbor, nuisance law may award damages to the neighbor. Thus, a cement plant that provides significant employment, and would cost millions to relocate, may continue to operate, but it will have to pay for the interference it causes to the lives and property of neighbors. Frequently, owners also have rights in their neighbors' property, such as an easement to cross a neighbor's property. Covenants, or agreements, between neighbors also give them rights in the other's property, such as the right to prohibit the construction of a carport, or the right to veto architectural changes.

One covenant that was common among property owners in the years between 1900 and 1948 was the racially restrictive covenant. It took several forms: one prohibited an owner from selling property to members of certain races or religions; another allowed the sale, but prohibited members of certain races or religions from occupying the property. The U.S. Supreme Court's landmark 1948 decision in Shelley v. Kraemer declared the enforcement of those covenants unconstitutional because they violated the equal rights of members of the prohibited classes. After the case, the covenants were unenforceable, although some property owners and courts made feeble attempts to get around the decision until the Fair Housing Act of 1968 outlawed them completely.

Twentieth-Century Legislative Innovations

Federal legislation in the New Deal and civil rights eras imposed additional limitations on property rights. Thus, union organizers have the right to appear on private property for limited organizing efforts under the National Labor Relations Act of 1935. The federal Fair Housing Act of 1968 limits the right of owners to discriminate in the sale or renting of housing. Sellers, landlords, and real estate agents cannot discriminate in the terms, conditions, or availability of property based on race, gender, religion, marital status, or disability. Similarly, the Civil Rights Act of 1964 limits the right of property owners who provide public accommodations to refuse service on the basis of race. Those federal acts realign the power held by property owners and the public.

From the late 1960s, property law became increasingly concerned with the welfare of tenants. In most jurisdictions, landlords must deliver and maintain habitable premises for residential tenants. If tenants fail to pay rent, the landlord can no longer forcibly remove them without a court order. When tenants move out before the lease expires, landlords must "mitigate" the harm by searching for substitute tenants.

There have been similar changes in marital property rights, which are designed to equitably divide property at divorce. A few states, for instance, consider an educational degree earned during marriage as marital property. Such a doctrine entitles the spouse who assisted in the acquisition of the degree some economic benefit from it. Another development, known as "palimony," allows those who contribute to a partner's acquisition of wealth to a share of that wealth, even if the couple was never married. Another important change since the 1960s is the movement to view many government entitlements, like welfare and pensions, as property. That view means that the government must provide recipients with due process in the award and termination of benefits.

Courts and the Protection of Property: Adverse Possession

Throughout American history, courts have been important in protecting property. They have consistently punished trespassers, although there were occasional squatter and tenant movements, such as the Anti-Rent movement in upstate New York in the 1840s, that supported the right of tenants to purchase the land they occupied on long-term leases. The courts have been perhaps most notorious in supporting the ouster of Native Americans from land. The most notorious case is Johnson v. McIntosh, decided in 1823. Chief Justice John Marshall seemed to recognize the inherent justness of the claim that the Plankasaw tribe once owned the land at issue in what is now Illinois, but he said the power of precedent constrained him. Marshall's frequently quoted opinion observed that "conquest gives a title which the Courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim. …"

While property law protects owners, it also respects those who use property efficiently. The doctrine of adverse possession allows squatters who occupy property for an extended period of time to acquire title to the property if they make sufficient improvements on the property or otherwise use it, such as for farming. Adverse possession indicates a pro-development bias in the law that encourages the development of land. Similarly, many states have statutes that allow those who mistakenly build on land thinking it is their own to buy the land from the true owner. Such provisions demonstrate property law's preference for exploitation of the land.

Landscape art in the nineteenth century frequently confirmed Americans' desire to possess property—and put their footprints on the land. George Inness's painting, The Lackawanna Valley, places a railroad roundhouse in the center of New York farmland. Similarly, Thomas Cole's Notch in the White Mountains (1839) depicts a mountain pass in the fall, a beautiful scene of nature, along with a tree stump, a house with smoke rising from its chimney, and a rider on a horse, going along a well-worn road.

Changing Ideas About the Purposes of Property

Property served different purposes in the founding era, the antebellum period, and the years after the Civil War. Around the time of the Revolution, it was perceived as a way of ensuring independence. Thomas Jefferson spoke of the importance of widely distributed property, for property provided the independence that made virtuous citizenship possible. Following the Revolution, states changed their laws regarding distribution of property at death so as to provide for a more equitable distribution among children and grandchildren. The changes both reflected American values favoring wide distribution of property, and helped shape an ideology proclaiming that property should be widely distributed. That civic republican vision of property has some modern adherents, who sometimes reconceptualize the community's rights over property. One argument runs that workers have an interest in the factory where they work, which courts should protect.

In the antebellum period, beginning around 1820, American values began to change. Wide distribution of property grew less important; instead, Americans spoke about the virtues of property as a way of acquiring wealth and of disciplining government. Southern proslavery writers like Thomas Roderick Dew and Nathan Beverly Tucker told their readers that throughout history, property was important in securing freedom. When English kings needed money, for instance, they traded increased rights for tax revenue. Some still appealed to the need for wide distribution of property—and the evils of concentrated wealth. Abolitionists frequently criticized wealthy slaveowners as anti-republican. Because slaveowners had a disproportionate share of property in the community, they did not have the same values or interests as the community. Their great power over others—poorer whites as well as slaves—led them to act imperiously. The Homestead Act of 1862, passed during the Civil War, granted 160 acres of land to people who agreed to settle it for five years. It reflected the desire for wide distribution of land.

During the Reconstruction Era and the Gilded Age, judges placed a premium on the freedom of contract. Born of the Civil War–era ideology that labor should be freely alienable (rather than owned by others), property was viewed as a commodity that could—and should—be sold. Those ideas became transformed into a doctrine that businesses may make contracts free from governmental scrutiny. Often those contracts held employees to low wages. Under their terms, if employees left before the contract was up, they received no compensation at all.

In the twentieth century, property has received varying degrees of protection. During the Progressive Era there were sharp conflicts within the courts and society about the value of protecting property at the expense of workers. A 1905 Supreme Court case, Lochner v. New York, struck down a minimum wage, maximum hour law for bakers on the principal of freedom of contract. Over the next two decades, however, many cases upheld similar laws. During the New Deal, the Supreme Court went so far as to approve of a statute that extended the time that debtors had to pay their mortgages before they were foreclosed.

At the beginning of the twenty-first century, a period in which property rights will be given increased protection from regulations seems to be starting. Those sentiments appear in Congress as well as in the U.S. Supreme Court. For instance, in 1998 Congress extended the period of time that a work may have copyright protection to seventy years after the death of the creator. Another example of the increased respect for property is the dramatic reduction in the estate tax in 2001, which was advocated even by members of the Democratic Party, the major party typically less concerned with protecting wealth.

Siegel, Stephen. "Understanding the Nineteenth Century Contract Clause: The Role of the Property-Privilege Distinction and Takings Clause Jurisprudence." University of Southern California Law Review 60 (1986): 1–119.

Singer, Joseph William. The Edges of the Field: Lessons on the Obligations of Ownership. Boston: Beacon Press, 2000.

———. Entitlement: The Paradoxes of Property. New Haven, Conn.:Yale University Press, 2000.

Treanor, William Michael. "The Original Understanding of the Takings Clause and the Political Process." Columbia Law Review 95 (1995): 782–887.

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Property

In the social sciences the concept of property or property rights refers to social mechanisms that control the use of valuable resources and create opportunities and incentives for private and public actors. Those mechanisms have profound consequences for social outcomes and over time are shaped by social outcomes. Many scholars, such as Douglass C. North in his 1990 Institutions, Institutional Change, and Economic Performance, use the terms institutions and property virtually synonymously. Modern social science has borrowed the concept from law but typically refers to real or de facto control of resources rather than formal legal or de jure control, which is the usual legal connotation. Law, moreover, gives property a narrower interpretation than does social science. In law, property is only one of several legal control mechanisms, which include tort law, criminal law, antitrust law, and constitutional law. In social science, property (or institutions) refers to all formal control mechanisms (rules and their enforcement) as well as informal ones such as social norms and ideologies.

A scarce resource or asset usually has mutually exclusive uses as well as compatible uses. A pasture cannot be used simultaneously as a shopping center, although various other uses are not excluded automatically. The grazing function of pastures often is not affected when aircraft use the airspace above, transportation tunnels are dug below, hikers cross the area on foot, and passing trains emit noise and vibrations. Property rights to a resource can be unified or partitioned by use.

A fundamental problem arises when a specific use of resource A interferes with the use of resource B by creating unwanted costs for the owner of B. Airplanes and automobiles often disturb the peace of homeowners, and factories pollute their surroundings. Uncompensated physical impact (known as negative or positive spillover or external effects) in principle is due to weak or absent property rights. Homeowners, for instance, have incomplete control (property rights) of the air they breathe and the sound waves that penetrate their residences.

Property consists of bundles of rights. In 1996 Elinor Ostrom and Edella Schlager identified five elements of rights to natural resources that appear in various bundles: access, rights to hike or canoe, for instance, but excluding rights to withdraw resource units; withdrawal, such as the right to catch fish or divert water; management, the right to maintain, improve, and transform a resource; exclusion, the right to decide who has access and withdrawal rights and how those rights are transferred; and alienation, the right to lease or sell exclusion and management rights.

Property systems vary with the ways in which categories of rights are divided and users and/or controllers are organized. The concept of public property has little meaning unless one identifies the exact bundle of rights, those who actually control the various elements, and the controllers’ incentives and opportunities. Similarly, by itself the term private property has little empirical content. Private property rights often are shared among independent private parties and delimited and restricted by the state. In law a privately owned corporation is classified as a legal individual, but the behavior of such entities depends on their internal organization and external constraints. Although their views are contested, as early as 1933 Adolf Berle and Gardiner Means in The Modern Corporation and Private Property drew attention to the possibility that shareholders, the formal owners, have limited control over their managers. Similar agency problems arise in public organizations that range from representative parliaments to nationalized industries.

The literature often confuses two distinct concepts: common or communal property and public domain or open access. Common or communal property involves arrangements by which a group of individuals jointly control access, withdrawal, and management rights to a resource such as a water system or pastureland. The usual defining characteristic of common or communal property is that the group lacks authority to alienate the resource to outsiders. Under appropriate circumstances common or communal property can be an efficient arrangement, as Elinor Ostrom showed in 1990 in Governing the Commons: The Evolution of Institutions for Collective Action. Property is absent, however, when a resource is in the public domain with no limits on withdrawal rights. This condition, which also is called open access, implies that no user has the incentive to maintain or improve the resource and invest in sustainable utilization. Lack of maintenance and unconstrained use eventually will dissipate the resource rent, as is happening in many high-sea fisheries. Open access conditions sometimes emerge in de jure property systems when the enforcement of private, public, or communal rights is weak.

Property rights are said to be effective or efficient only with reference to specific goals. If the goal is to maximize the joint value of assets that belong to a social group (maximize wealth per capita), the community must minimize the sum of three cost categories: the costs of traditional production (transformation), exclusion, and internal governance. High exclusion cost sometimes rules out the option of dividing a resource such as the atmosphere, fish stocks in the ocean, or knowledge among individual owners and enforce exclusive ownership. Eventually new technologies and new types of organization may enable exclusion and, for instance, make possible exclusive ownership of individual fish in the oceans.

It is often efficient for independent actors to cooperate in utilizing a resource and share property rights if they can solve the problem of internal governance. The governance problem arises because opportunistic actors have a propensity to follow their self-interest and exploit their co-owner, for instance, by withdrawing more than their allocated share of units from a fishery or an orchard or failing to cooperate in doing maintenance work. Incentive schemes and direct monitoring are used to contain internal governance problems. High internal governance costs limit joint ownership, but new technologies and new forms of organization can lower those costs.

Recent studies indicate that the structure of property rights (institutions) is the fundamental explanation for long-term economic growth. In 2004 Dani Rodrik and coauthors provided empirical evidence for this proposition in “Institutions Rule: The Primacy of Institutions over Geography and Integration in Economic Development.” The importance of property rights for economic progress raises two related questions: How do property rights evolve over time? Why do societies tolerate systems of property rights that cause economic decline?

Social science provides at least two perspectives on the evolution of property rights: the notion of unplanned or spontaneous evolution, which often is associated with the work of Friedrich Hayek, and planned or administered change, such as recent attempts at transition in Eastern Europe and in developing countries. Spontaneous evolution and administered change, however, need not be mutually exclusive. The history of the Soviet Union suggests that the general direction of change in property systems, for instance, away from or toward markets, often is administered centrally whereas the details and actual outcomes depend on spontaneous, decentralized interactions.

The state is the ultimate guarantor or destroyer of secure property rights. To finance projects such as warfare, powerful rulers and their cohorts throughout history have created uncertainty about investment projects by appropriating the wealth of their subjects. Stable property rights have emerged only when the balance of power has shifted against the rulers; that has occurred when social developments have increased the de facto power of groups such as feudal barons or a new middle class. Those groups sometimes have used their new strength to constrain the de jure power of the state, tie the hands of the ruler, and create limited government. These autonomous and path-dependent developments often are fostered by historical accidents. Dutch primacy in world trade and the Industrial Revolution in England were fundamentally not planned or administered events.

If flaws in the system of property rights are the root cause of economic decline, why do potential investors and producers not persuade their rulers to reform the system, expand the tax base, and share the fruits of growth? Failure to cooperate is caused by uncertainty about exactly who will gain materially from reforms, how reforms will affect future power relationships, and the high costs of making credible promises. When the state is not bound by strong judicial or other mechanisms, agreements between social groups and current or future rulers lack credibility. Political bargaining about property rules requires a balance of power and credible constraints. In addition to power relationships, social norms and ideology appear to play a role in the evolution of limited government.

A system of property rights is of great practical importance when the system fails to support advanced production technologies and wastes resources on a large scale. Large-scale failures are prevalent in developing countries and occur universally in the use of certain natural resources, such as the atmosphere. In a high-income country rapid technological change can undermine a previously effective property system and retard the country’s future development unless appropriate adjustments are made.

The new economy with its network industries and knowledge-based firms presents this type of challenge. Knowledge or intellectual property has replaced the plants and equipment of the Industrial Revolution as the engine of growth. Once they are made available, knowledge products have characteristics of public goods in that knowledge cannot be used up. In the new economy property regimes must balance two conflicting goals: giving scientists and technicians strong incentives to discover new knowledge and innovate and creating competition in the distribution of knowledge goods with output prices near the marginal cost, which often is close to zero.

The solution requires a difficult compromise. The initial creation of knowledge goods such as computer software and medicinal drugs entails high fixed costs, whereas the marginal cost of reproducing existing goods is often close to zero. Efficient intellectual property regimes must stimulate the supply of innovations by giving innovators an opportunity to cover their fixed costs while not allowing them to raise their prices so high that they limit the distribution of valuable products such as drugs. Various devices are used to create intellectual property, including patents, copyrights, trademarks, and trade secrets. In recent years the scope of patents has expanded, for instance, to include basic research in university laboratories. Some critics maintain that the use of patents and copyrights has exceeded sensible limits. Digitalization of knowledge and the rise of the Internet have worked in the opposite direction and undermined intellectual property rights, for instance, by lowering the cost of copying and distributing music and the contents of books.

For high-income as well as developing countries the lesson is the same: Economic progress depends on how each community adjusts its property rights to new technologies and new opportunities. The adjustment is determined in interactions between the state and powerful social groups, with the uncertain results depending on the balance of power, the structure of the political system, ideological beliefs, and available knowledge.

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Property

Property

Definitions of what constitutes property, as well as attitudes toward the ownership of property, vary with different cultures and different historical epochs. Cross-cultural differences have been studied especially by anthropologists; the article that appears below describes the institution of property in preliterate societies, as do Economic anthropology; Exchange and display; Trade and markets. Historians of economic theory and historians of social and economic institutions often note changes in concepts of property; see, for example, Economic thought, articles onancient and medieval thoughtandsocialist thought, and such historically oriented articles as Feudalism; Manorial economy; Slavery. Property can also be considered in its relation to other major social institutions. Thus, implicitly or explicitly, a wide variety of ideas about property emerges in the articles on the major world religions and in Monasticism. Similarly, in the economic sphere, property is directly involved in several of the articlesunder Taxation, and somewhat less directly in Capital; Income distribution; Rent. Moral and legal problems related to property (including intellectual property) are described in Patents; Privacy. Few thinkers in the social sciences have written works that are primarily devoted to the elucidation of the institution of property, but the problem is discussed in the biographies of Aquinas; Herskovits; Hume; Locke; Marx; Mauss; Quesnay; Polanyi; Smith, Adam; Veblen.

Property is the name for a concept that refers to the rights and obligations and the privileges and restrictions that govern the behavior of man in any society toward the scarce objects of value in that society. People everywhere desire the possession of things which are valuable by cultural definition and which by this desiring become scarce: sunlight, fresh air, land, food, rituals, medicine bundles, masks, or automobiles. Socially sanctioned customs or police-enforced laws, which define rights and obligations about ownership, control competition for these desired goods. What is owned is property.

The history of the English word property indicates something of the way Western man has thought about scarce objects. Both the Middle English word propete and the Old French term propriete are derived from the Latin word proprietas, itself the noun form of the Latin proprius, meaning one’s own, which is akin to the French noun propre, meaning what is close or near. Thus, historically, property carries the implication that one has exclusive rights to objects because they are so close or near that they have become part of oneself through familiarity or common usage.

Man is not the only animal to show an interest in objects close to him. In an unqualified usage of the term, property appears to be characteristic of many forms of animal life, with the important distinction, however, that one should only talk of property rights when the control of scarce objects can be related to a unique normative system of values; such a system is found only in human groups.

Various insects, such as bees, wasps, ants, and termites, will guard their prey and defend their nests from attack. The material they gather is used to feed themselves or their offspring or to build a home. In each case the ultimate aim appears to be the perpetuation of the species, especially in those cases in which the parent never sees the offspring. Control of objects is not for its own sake; it is merely a link in the life cycle.

The few birds that accumulate stores or, occasionally, bright colored objects do so as apparent modifications of food-getting or courtship impulses. The occupation and defense of territory are part of feeding, sexual, or parental behavior rather than examples of the control of defined landed property.

Rodents hoard food and struggle among themselves for the exclusive possession of territorial rights. These complex behavioral processes are found in rats, squirrels, and beavers. This behavior is not entirely innate (it is the wildest speculation to talk of an “instinct of property”), but it is a complex stereotyped action pattern for which there is much experimental and other evidence to suggest a continuing interaction between nurture and nature (Barnett 1963, pp. 41–43, 81–92; Thorpe 1956, pp. 397–398).

Among some primate species there appears to be accumulation of miscellaneous objects used variously for personal adornment, or as playthings, or as instruments for acquiring food. It is characteristic of apes that objects acquire added value when other apes desire them at the same time. Apes, in fact, appear to display a “protosense” of private ownership.

Property among animals refers to objects necessary for species survival. The important and relevant distinction between man and other animals, only faintly foreshadowed among some apes, lies in the fact that for man material objects are in essence an extension and definition of personality. Without being strictly necessary for personal or species survival, many material objects are used by man to magnify his sense of self and to extend his influence by giving him power over other men or over the spiritual forces of nature.

The objects that thus extend personality are generally scarce and hard to come by. Their acquisition and control result in social conflict. In this conflict the social concept of property is conceived and developed. The study of property among animals shows that exclusive possession of material objects subserves certain basic needs that are common to all animal species. Similarities are analogous rather than identical. Only in man can we postulate the emergence of a sense of selfhood that gives psychological underpinning for the concepts of rights, duties, responsibilities, and obligations. Balancing of individual and group conflicts is a delicate task that is carried out by tribal customs and conventions. As these customs differ from one tribe to another, so will the content of human property rights and duties (Beaglehole 1931; Lowie 1920).

An understanding of primitive ownership is best achieved by concentrating upon the property systems of one or two preliterate groups for which there is reasonable documentation, always keeping in mind the fact that the groups chosen represent a fragmentary range of customs rather than definitive examples of all preliterate societies.

Cheyenne Plains Indians. The Cheyenne were an American Indian people inhabiting the Great Plains of what are now the states of Montana, eastern Wyoming, Oklahoma, and Colorado. They lived a nomadic, semipastoral life, dependent on buffalo hunting. They valued horses and engaged in warlike raiding activities. Their property system was in part dependent upon nomadism. Cheyenne inheritance customs were of two kinds. When a married man died, he carried with him to his grave one set of his best equipment: garments, buffalo robes, bows, arrows, gun, war club, knives, pipe, and other personal belongings. His favorite horse was slaughtered. These things were all his and his alone. If the man was a shaman, his medicine bundle also went with the body, unless previously willed to a friend or a son. The rest of the property of a married man who died intestate went to his widow, although an old man could make anticipatory gifts which were binding on his heirs. The parents of an unmarried warrior disposed of his goods by gift. Comparable giving away of property occurred in the case of married and unmarried women.

Private property rights were well developed and well recognized among the Cheyenne. Misappropriation of property was not uncommon. Trading in property or giving and taking chattels often validated the exchange of rituals and ceremonials and was used as compensation or restitution in legal disputes, to pay for services in curing illness, to count “coup/’ or to mark the transfer of incorporeal properties such as supernatural powers. Property was also given to pay for the preparation of new implements and the teaching of such women’s arts as quilling, beadworking, or lodge making. Property rights were clearly expressed in regard to killed buffalo, war loot, horses, and other articles of ornament or utility. The owner had full rights of disposal. At times, legal rights became blurred by conflict between custom and personal desires. Application of the principle of “pluralism” suggests that among the Cheyenne, as among most other preliterate peoples, there were various levels and types of prevailing normative systems which at different times could be applied to particular cases of property disposal and ownership (Llewellyn & Hoebel 1941, pp. 20–21, 212–213; Malinowski 1926). Those preliterates who have not invented courts of law to interpret disputed points of ownership have instead a range of property customs which vary in definition from boldly accepted delineation to shadowy etchings.

Hopi Pueblo Indians. Property rights among the Hopi Indians, a sedentary, agricultural, potteryand basket-making people living in pueblo villages on the tablelands or mesas above the sandy desert of northeastern Arizona in the southwestern part of the United States, provide a neat contrast to the warlike, nomadic Cheyenne pattern (Beaglehole 1935).

Among the Hopi, a matrilineal and matrilocal people, a man owns his clothes, his ceremonial costume (mask, kilt, belt, leg bands, rattles), his ornaments of silver, turquoise, and shell, his riding equipment, tools, and implements, occasionally a horse, and perhaps a few sheep or cattle. Today, he keeps the money he earns as his own private property, but if he spends this money on goods for his wife and children, these goods become the property of these members of the matrilineal group, to which the husband does not belong. An unmarried woman similarly owns her own clothes and ornaments. A married woman who is the head of her own household owns, in addition, her house and its contents; her property is customarily inherited by her daughters. The property of a man is usually inherited by his sisters, brothers, and other maternal kinsfolk and not by his wife, sons, or daughters. The borrowing of personal goods is frequent, but prolonged possession or theft is rare.

Much Hopi property, whether real or personal, is owned by members of the matrilineal clan. This property includes ceremonial medicine bundles, some masks and fetishes, eagles, and the semisubterranean religious chambers called kivas. Normally, the senior man of a clan is regarded as a trustee for this property, although he may neither use it nor dispose of it, except in customarily approved ways.

Land, the basis of Hopi economic life, is severely limited in extent and fertility. It is owned by the village and protected by commonly recognized boundaries. Village land is divided into clan-owned land, marked by stone-slab boundary signs. Families within each clan cultivate well-defined family areas. None of these ownerships is absolute, since land for the Hopi is inalienable. Ownership thus means effective trusteeship of the land and of the food and wealth that cultivation produces. In general all trusteeship rights are inherited within the family or lineage connection of the trustee clan. The matrilineal clan also owns access to fresh-water springs.

Almost inevitably, a summary description of preliterate property rights gives the misleading impression of a fixed or static institution. In the illustrations taken from Hopi and Cheyenne cultures, some aspects of ownership are fairly stable, but others are subject to change consequent upon increasing contact with Euro–American culture. The institution of property and the accompanying philosophical or protojuridical justifications have changed and will go on changing to meet the demands of an ever-changing society and its culture. Static models of culture are useful but unrealistic analytic tools. Concepts of property are subject to the endless erosion of time.

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Property

Europe, 1450 to 1789: Encyclopedia of the Early Modern World
COPYRIGHT 2004 The Gale Group Inc.

PROPERTY

PROPERTY. In modern times, "property" generally refers to the ownership of an economic good, such as land or money. During the later Middle Ages and the early modern period, property encompassed a much wider variety of entitlements, including political powers, honorific and useful privileges, and tax exemptions. As one late-seventeenth-century dictionary defined it, property is the mastery of "the resource, the domain, the seigniory of something" (cited in Kaiser, p. 302). Such language reflects the continued influence of later feudal law, which conflated wealth and status and regulated
the sale and disposition of property according to the legal standing of its owners and the nature of the property involved.

PUBLIC SEIGNIORY VS. PRIVATE SEIGNIORY

Although adumbrated in medieval jurisprudence, the distinction between public power and property rights, or what the influential early-seventeenth-century French jurist Charles Loyseau termed, respectively, "public seigniory" and "private seigniory," had little practical meaning until a royal state emerged that drained away political powers previously held by noble lords, often referred to as seigniors. During the early modern period such a state did gradually emerge in western Europe. Royal legal systems eventually reduced the scope and importance of seignorial justice, while royal armies grew so large that by 1700 the armed units equipped by and loyal to the lords ceased to pose a credible military threat and were disbanded.

Yet the distinction between public and private seigniory by no means disappeared in western Europe, for noble landholders continued to exercise public functions in a variety of ways. In many areas courts run by the seigniors continued to hear cases, some of which involved contests between lords and tenants over land rights. In England noble landlords and their younger brothers translated territorial possession into political power through their heavy representation in Parliament, which after 1688 became the senior partner within the English state. In France the distinction between public and private seigniory was muddied by venal office holding, that is, the practice of selling state offices, including judgeships in the kingdom's superior courts, to private individuals. To be sure, most European peasant and middle-class property owners did not exercise direct political power, but the growth of commerce did expand their access to it, most notably through the purchase of noble landed estates by wealthy merchants. This trend so threatened noble status that kings across Europe outlawed the sale of seigniories to non-nobles, a restriction that was more effectively enforced in eastern Europe than in western Europe, where the middle class was larger and wealthier.

USUFRUCTUARY DOMAIN VS. DIRECT DOMAIN

Although non-landed property expanded greatly during the early modern period, most wealth in early modern Europe still took the form of land and buildings. In areas where Roman law remained strong, such as southern France, land was typically held as freehold, that is, as property that did not require payment of services or dues to a lord. But in most European countries, the majority of peasants held only usufructuary domain over their land, meaning that, even where they had escaped serfdom, as in almost all of western Europe, peasants owed services and dues to a seignior, whose rights over peasant land constituted their direct domain. Beyond direct domain strictly understood, seigniors enjoyed a variety of honorific privileges, such as the right to lead ceremonial processions, and useful privileges, such as the exclusive right to hunt in local forests. In return seigniors were expected to demonstrate paternal concern for their tenants by, for example, providing tenants with occasional gifts and sponsoring village festivals.

In western Europe property ownership became progressively more associated with usufructuary domain during the early modern period, and many labor services were converted into money payments. But these changes did not mean that peasant services and dues, which varied considerably in cost and nature from region to region, were negligible. Thus, whereas in France annual labor services typically required a mere two or three days of work on lands directly farmed by the seignior, in Germany some peasants were required to work for their lords more than three hundred days per year. Labor services in western Europe were usually less onerous than dues, which ranged from rents to obligatory fees for use of the lord's oven and mill to payments on the transfer of land from one tenant to another. Tenants might also be required to pay for the drafting of detailed legal affidavits stipulating their obligations to their lords.

It is unclear whether and to what extent the burden of peasant dues in western Europe grew over the early modern period. But it does appear that western European seigniors became more adept at finding legal pretexts for squeezing more revenue from their tenants, thereby embittering lord-tenant relationships and dispelling the paternalistic
aura surrounding them. In England peasants also faced the loss of their land titles as a result of enclosure, the combining of smaller plots into larger, more efficient fields by landlords, a practice that escalated after 1750. Enclosure has been vigorously defended on the grounds that it raised living standards generally by lowering bread prices and that most peasants found new ways to earn a living. At the same time, by allowing larger landlords to dispossess smaller ones, enclosure deprived peasants of the one resource that cushioned them from the vagaries of the market, and it disrupted traditional rhythms of rural life.

In eastern Europe the condition of peasants—most of them enserfed over the previous three centuries—was surely worse than in the West, as evidenced by a wave of peasant rebellions during the later eighteenth century that swept over Bohemia, Russia, and elsewhere. Although the causes of these rebellions were multiple, they generally arose in response to seignorial efforts to exact greater labor services and in some areas to state-supported seignorial efforts to turn serfs into virtual slaves. For despite mild state efforts at moderating such abuses, Russian and Polish seigniors routinely deprived serfs of their land rights, sold them as chattel to other lords, and inflicted brutal corporal punishments and even death sentences upon tenants who resisted the loss of their rights.

WOMEN AND PROPERTY

As in so many other respects, women suffered disadvantages in the matter of property ownership. Generally, the property women brought into marriages and the money they earned as wages legally fell under the control of their husbands. Wives could not normally make binding contracts or sue in court without their husbands' permission. Longstanding misogyny lay behind these limitations, but the need to preserve family unity provided their chief justification, although significant restrictions on female property ownership were not universal. Thus, widows often received and disposed of income accruing from their dead spouse's property, while unmarried women, if the sole living heir, might inherit the estate of their parents. Furthermore, some marriage contracts stipulated that wives retained ownership of their dowries. Despite laws to the contrary, certain cities permitted women to make investments on their own and conduct private businesses. Women also exerted some independence in the deeding of movable property (goods other than land or buildings) to their heirs. In short, despite major legal obstacles in the acquisition and disposition of property, women were by no means entirely dispossessed.

THE GROWING DEBATE ON PROPERTY

During the eighteenth century, seignorialism became the object of a growing debate arising from new political conditions, especially the need for greater state revenues, and the birth of cultural movements, notably the Enlightenment. By 1750 it had become clear that the squeezing of peasants by the seigniors was seriously eroding the state tax base and reducing the incentive of peasants to produce. In some areas of Germany seignorial authority was already declining with the growth of a large number of masterless, landless workers. Influenced by the liberal doctrines of the Enlightenment, German reformers tried to accelerate and regulate this process by limiting seignorial dues and services in hopes that liberation from the most oppressive aspects of seignorialism and a larger stake in the produce of a seigniory would encourage peasants to work harder. A similar attack on seignorialism was launched in France by a group of influential political economists called the Physiocrats. The Physiocrats, too, advocated the gradual scaling back of seignorial dues, as well as the elimination of state-imposed restrictions on the use and disposition of property, which they portrayed as impediments to expanding output. Although they did not deny the legality of seignorial property outright, the Physiocrats undercut its legitimacy by representing seignorial rights as the product of the lords' historic violence and tyranny over the peasantry. Defenders of seignorial rights tried to turn the tables on the Physiocrats by contending that these rights were "natural" properties acquired legitimately through contracts freely entered into by tenants. This counterargument carried little weight after 1789, when the French Revolution, which proclaimed property as an "inviolable and sacred" right, radically scaled back peasant dues, transformed remaining ones into pure rents, and eliminated all the honorific privileges of the seigniors.

By the late eighteenth century, property in western Europe was gradually emerging from its seignorial cocoon, but this did not mean that it had lost all its political significance. On the contrary, as had been the case in England for a long time, property was considered an integral part of one's political personality, particularly insofar as it enabled its owners to resist corruption by "despotic" rulers. The late-seventeenth-century English political philosopher John Locke, in preaching the trinity of "life, liberty, and property" as natural rights of all people, helped make property holding a prerequisite for active citizenship in virtually all states until the later nineteenth century. It was only with the flood tide of democracy that property ownership became legally dissociated from political rights, a dissociation that has lasted until the present day.

BIBLIOGRAPHY

Blum, Jerome. The End of the Old Order in Rural Europe. Princeton, 1978.

——. Lord and Peasant in Russia from the Ninth to the Nineteenth Century. Princeton, 1961.

Erickson, Amy Louise. Women and Property in Early Modern England.New York, 1993.

Kaiser, Thomas E., "Property, Sovereignty, the Declaration of the Rights of Man, and the Tradition of French Jurisprudence." In The French Idea of Freedom: The Old Regime and the Declaration of Rights of 1789, edited by Dale Van Kley, pp. 300–339, 418–424. Stanford, 1994.

Markoff, John. The Abolition of Feudalism: Peasants, Lords, and Legislators in the French Revolution. University Park, Pa., 1996.

Citation styles

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property

The Columbia Encyclopedia, 6th ed.

Copyright The Columbia University Press

property, rights to the enjoyment of things of economic value, whether the enjoyment is exclusive or shared, present or prospective. The rightful possession of such rights is called ownership. Ownership necessarily is supported by correlative rights to exclude others from enjoyment. By extension of usage, the things in which one has property rights are called one's property; thus the person who holds title to a house, even though there is a mortgage outstanding, calls it his or her
"property."

Nature of Modern Property

Modern Anglo-American property law provides at least potentially for the ownership of nearly all things that have or may have value. The terminology and much of the content of modern property law stem from its origins in feudalism. The fundamental division is into realty (or real estate or real property) and personalty (or personal property). (For rules affecting marital property, see husband and wife; for certain special types of property, see copyright and patent.)

Realty

Realty is chiefly land and improvements built thereon. Sometimes it is comprehensively, but loosely, described as lands, tenements (holdings by another's authority), and hereditaments (that which is capable of being inherited). Formerly its chief characteristics in a legal sense were that it went by descent to the heir of the owner (who had no control over its disposition) and that ownership might be recovered from any other party by a lawsuit (a so-called real action). Also possessing such characteristics, and hence classified as real property, were titles of honor, heirlooms, and advowsons, i.e., rights to sell ecclesiastical benefices. The manner in which realty is owned is called an estate; specifically, ownership is a fee of some sort, for example, an estate in fee simple (see tenure).

Personalty

Personal property consists chiefly of movables, that is, portable objects. Typically (but by no means invariably) the owner can by will, gift, or sale determine its distribution (note the contrast with the term descent), and if it has been wrongly taken, a lawsuit (a so-called personal action) will recover damages but will not restore the object. Certain types of interests in land are also classified as personalty; examples are leases for a period of years, mortgages, and liens.

Limits on Ownership

The need for unobstructed intercourse between nations prohibits the assertion of ownership of the high seas, and special rules apply to territorial waters (see waters, territorial) and to domestic navigable water. Air space beyond that which can be used by airplanes is often considered not subject to ownership. In a sense, all land presently or ultimately belongs to the state, for whatever is not actually owned by the public authority may be transferred to it by escheat (when there is no heir to the owner) or in condemnation proceedings under the power of eminent domain. In fact, much or most land in capitalist societies is in private hands, although public lands may be extensive and ownership of subsoil mineral wealth or of buried objects (see treasure-trove) may in some instances be public. (See also public ownership.)

Development of Property Law

Protection and content are given to the ownership of property by custom or law. The type of property law in a society may be taken as an index of its social and economic system. For example, a primitive pastoral tribe that must be closely united to resist its enemies may hold pasture lands in common or rotate ownership, thereby avoiding disruptive quarrels. By contrast, in societies that enjoy an economic surplus and relative security, the institution of private property may be highly developed, with marked division of ownership and a competitive struggle for control. On the other hand, private property may be all but eliminated in certain societies, as in those envisioned by Karl Marx.

In Europe, the distinction between realty and personalty served the purposes of early feudal society. The ownership and disposition of land, the basis of most wealth and the keystone of the social structure, were controlled to protect society, while the ownership of personalty, being of minor importance, was almost unfettered.

As the economic system was altered during the late Middle Ages, however, personalty lost its subordinate position and grew to be the economic mainstay of the rising middle class of merchants and manufacturers. Personalty could be bought and sold in relative freedom without the hindrances that beset the disposal of land. By taking advantage of its economic freedom, the middle class was able to replace the landed aristocracy as society's dominant class. Concurrently, it sought to relieve real property of its medieval fetters in order to use it, along with personalty, as revenue-producing capital.

Gradually the law of realty tended in all important respects to be assimilated to that of personalty. In time land could be sold or distributed by will with almost perfect freedom; in effect it joined the list of other commodities. Differences of detail in the law of realty and personalty persist, especially in the transfer of realty, however, which involves great formality.

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property

property Property and property rights are central to capitalist societies. Perhaps because they are largely taken for granted in this context they have received relatively little attention from sociologists. By comparison, political philosophers and economists have debated the nature of property at length, and fiercely contested its origins (see F. Snare , ‘The Concept of Property’, American Philosophical Quarterly, 1972, and E. G. Furubotn and and S. Pejovitch , ‘Property Rights and Economic Theory’, Journal of Economic Literature, 1972).

Possibly the most influential modern explanation of the origins of private property is John Locke's theory of natural rights, which states that property ownership rests on the individual's rights to use whatever is in the natural environment and is deemed necessary for the satisfaction of needs, and the right to own whatever one has expended labour upon (provided it is not then wasted). Locke's theory thus provides three criteria for a naturally just distribution of property: namely, need (or possibly desire), expenditure of labour (which includes creative entrepreneurship), and use (which some have interpreted as exploitation and accumulation).

Since Locke's theory held that property was that which a man had ‘mixed his labour with’, it offered a potential challenge to the early-modern status quo (although Locke himself had set out to defend this), on the grounds that it implied it was neither natural nor just for the privileged few in society to enjoy the surplus created by the labour of the many. Utilitarianism met this challenge, with the argument that private property and its laws had no origins or justification other than utility: that is, the rules of property arise out of conventions which experience has shown to be the most useful for the promotion of human happiness. For example, David Hume considered the principal rules establishing title to property to be those of present possession, first possession, long possession, accession, and succession, and argued that the justice of these rules was rooted in the history of social experience. The present system was the ‘right’ system because it had clearly evolved in response to people's needs. Since this approach offered not only an explanation but also a justification for the existing distribution of property it became central to the philosophy of classical liberalism during the nineteenth century.

The conservative reaction to this philosophy of property opposed the principles of utility with those of tradition, experience, and stewardship. Conservatives conceived of property as a partnership between the generations, epitomized by the continuity of the landed estate, of which the landowner was a steward who served (rather than owned) the property, under the obligation of maintaining allegiance to the status quo and thus preserving a stable social order.

The Scottish political economists– John Millar, Adam Ferguson, and Adam Smith—extended the analysis of property relations to take account of class formation. This, in turn, encouraged Karl Marx to offer the first systematic sociological account of the importance of property, stressing the links between property ownership, political domination, and ideological representations. In Marx's formulation, property is power, and the different forms of property define the ‘social conditions of existence’ upon which rises the superstructure of the state, civil society, and ideology. Somewhat later, Max Weber also argued that ‘property and lack of property are … the basic characteristics of all class situations’, although he accepted that the propertied classes were highly differentiated in the types of property they held and the meaning which they gave to its utilization.

This last observation opens up the issue which dominates contemporary sociological discussions of property. These have moved away from considering ideologies of property and the social organization of propertied strata, and concentrated attention instead on the consumption of property, notably the diverse ways in which ownership of certain types of property (for example houses, cars, and clothes) shapes social relations and social meanings, and plays an important role in the construction of social identities.

Most sociologists have been concerned with private property. However, non-capitalist forms of property ownership (including possession of symbolic property) have been extensively studied by anthropologists, and sociologists have recently extended their analyses to include state or collective ownership, and inheritance. The best short introduction to the topic is Andrew Reeve's Property (1986). For a sociological case-study of the material and symbolic significance of property see Peter Saunders , A Nation of Home Owners (1989). See also BOURGEOISIE; COLLECTIVE CONSUMPTION; CONSUMPTION, SOCIOLOGY OF; CONSUMPTION SECTORS; GIFT RELATIONSHIP; KULA RING; PRIVATIZATION; PUBLIC GOOD.

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property

prop·er·ty
/ ˈpräpərtē/
•
n.
(pl. -ties)
1.
a thing or things belonging to someone; possessions collectively:
she wanted Oliver and his property out of her housethe stolen property was not recovered. ∎
a building or buildings and the land belonging to it or them:
he's expanding now, buying property |
the renovation of commercial properties. ∎ Law
the right to the possession, use, or disposal of something; ownership:
rights of property. ∎
old-fashioned term for prop2 .
2.
an attribute, quality, or characteristic of something:
the property of heat to expand metal at uniform rates.

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properties

properties The properties of an object are parameters associated with that object and cover a wide range of items. Properties cover such diverse things as date of creation/modification, actions to be taken when activated, protection status, etc.

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